Carver v. Talanca

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

ANITA CARVER, et al.,

Plaintiffs CIVIL ACTION NO. 3:24-CV-00771

v. (MEHALCHICK, J.)

JEREMY TALANCA, et al.,

Defendants.

MEMORANDUM

Plaintiffs Anita and Richard Carver (collectively, “Plaintiffs”) initiated this action

against Defendants Former Police Officer Jeremy Talanca (“Officer Talanca”), Police Officer

Brandon Gonzalez (“Officer Gonzalez”) (collectively with Officer Talanca, “Police

Defendants”), and Former Mayor Judith L. Mehlbaum (“Mayor Mehlbaum”) (collectively,

“Defendants”) pursuant to 42 U.S.C. § 1983 on May 7, 2024. (Doc. 1). Defendants filed the

instant motion to dismiss on July 8, 2024. (Doc. 7). For the following reasons, the motion

will be GRANTED. (Doc. 7).

I. BACKGROUND AND PROCEDURAL HISTORY

The following factual summary is taken from the complaint. (Doc. 1). Plaintiffs allege

that “[a]ll times relevant hereto Plaintiff Anita Carver and Plaintiff Richard Carver were

having a disagreement with the Mayor of the Borough of Girardville, Judith Mehlbaum.”

(Doc. 1, ¶ 13). Plaintiffs believe that pursuant to a direct order by Mayor Mehlbaum, on May

8, 2022, Police Defendants unlawfully entered their home. (Doc. 1, ¶¶ 11, 13-14). Police

Defendants purportedly based their entry on a report of “loud music” on the premises. (Doc.

1, ¶ 11). However, according to Plaintiffs, not only was there no loud music, but Police

Defendants “had pulled their guns when they entered into the premises[.]” (Doc. 1, ¶ 11). As

a result of this entry into their home, Plaintiffs assert they suffered a deprivation of their rights

guaranteed under the Fourth Amendment. (Doc. 1, ¶ 17).

Plaintiffs filed their complaint on May 7, 2024. (Doc. 1). Defendants filed their motion

to dismiss on July 8, 2024, and a brief in support of their motion on July 22, 2024. (Doc. 7;

Doc. 8). On September 19, 2024, Plaintiffs filed a brief in opposition. (Doc. 12). Defendants

filed a reply brief on October 3, 2024. (Doc. 13). Accordingly, the motion has been fully

briefed and is ripe for discussion.

II. LEGAL STANDARD

A. MOTION TO DISMISS

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

that are not entitled to the assumption of truth, and finally determine whether the complaint’s

factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch

v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion,

the court may consider the facts alleged on the face of the complaint, as well as “documents

incorporated into the complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements that make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

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entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’. . . ”

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a

plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v.

Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is liable for

the misconduct alleged.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).

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The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347.

B. 42 U.S.C. SECTION 1983

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

Every person who, under color of any statute, ordinance, regulation,

custom, or usage, of any State or Territory or the District of Columbia, subjects,

or causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

“Section 1983 is not a source of substantive rights,” but is merely a means through

which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S.

273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that:

(1) the conduct complained of was committed by persons acting under color of state law; and

(2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of

the United States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)

(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

Defendants cite several bases for the dismissal of Plaintiffs’ complaint. (Doc. 8).

According to Defendants, Plaintiffs have failed to sufficiently plead their Fourth Amendment

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and intentional infliction of emotional distress claims, punitive damages are unavailable in

this case, Plaintiffs have failed to plead the personal involvement of Mayor Mehlbaum, and

Defendants are entitled to immunity for the claims asserted against them. (Doc. 8, at 2).

Plaintiffs agree to the dismissal of their intentional infliction of emotional distress claim and

their claims for punitive damages. (Doc. 12, at 5-6, 9). Accordingly, these claims will be

DISMISSED with prejudice. Plaintiffs argue the rest of their claims are sufficient to survive

dismissal. (Doc. 12, at 5-6). The Court will address each in turn.

A. PLAINTIFFS’ FOURTH AMENDMENT CLAIMS

Defendants argue that Plaintiffs’ Fourth Amendment claims must be dismissed

because “Plaintiffs offer virtually no specific circumstances of the Police Defendants’ entry;

only that they entered and that Plaintiffs’ legal opinion was that their entry was unlawful.”

(Doc. 8, at 11). Defendants in their reply brief further argue that the allegations in the

complaint support Police Defendants had probable cause to enter into Plaintiffs’ home. (Doc.

13, 3-8). In response, Plaintiffs respond that they “essentially are going to stand on their

Complaint.” (Doc. 12, at 6). Plaintiffs elaborate that their complaint “clearly alleges a

violation of excessive force by the two Defendant officers and also clearly alleges a supervisory

liability of Mayor Mehlbaum.”1 (Doc. 12, at 6).

1 In support of their arguments, Plaintiffs cite to a law review article titled Non-Contact

Excessive Force by Police: Is That Really a Thing? and two Third Circuit cases, one reviewing a

trial court’s denial of a motion for judgment notwithstanding the verdict and another

reviewing the district court’s decision on a motion for summary judgment. See Black v.

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A review of the complaint reveals that Plaintiffs have not sufficiently stated a claim

under the Fourth Amendment. (Doc. 1). The Fourth Amendment protects citizens from

unreasonable searches and seizures. U.S. CONST. AMEND. IV. “The Fourth Amendment is

not, of course, a guarantee against all searches and seizures, but only against unreasonable

searches and seizures.” United States v. Sharpe, 470 U.S. 675, 682 (1985); see also Dixon v.

Williams, No. 4:13-CV-2762, 2015 WL 5695923, at *5 (M.D. Pa. Sept. 28, 2015). Excessive

force, as is alleged here, constitutes a seizure under the Fourth Amendment. See Boston v. New

Brunswick Police Dep't, No. CIV.A. 04-5921 (WHW), 2005 WL 1661582, at *2 (D.N.J. July

15, 2005). “To state a claim for excessive force as an unreasonable seizure under the Fourth

Amendment, a plaintiff must show that a ‘seizure’ occurred and that it was unreasonable.”

Brower v. County of Inyo, 489 U.S. 593, 599 (1989). “[A]ll claims that law enforcement officers

have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or

other ‘seizure’ of a free citizen should be analyzed under the Fourth Amendment and its

‘reasonableness' standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). Excessive force may

take the form of a physical action or a show of authority that has “in some way restrained the

liberty of a citizen.” New Brunswick Police Dep't, 2005 WL 1661582, at *2 (quoting Terry v.

Ohio, 392 U.S. 1, 19 n. 16 (1968).

Stephens, 662 F.2d 181, 184-85 (3d Cir. 1981); see also Baker v. Monroe Township, 50 F.3d 1186,

1195 (3d Cir. 1995). Plaintiffs’ counsel does not explain the Third Circuit’s findings in either

case, providing only “[t]h[e]se two cases clearly show that the officers violated Plaintiffs’

Fourth Amendment right by using excessive force.” (Doc. 12, at 7).

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The complaint provides that Police Defendants unlawfully entered Plaintiffs’ home

with guns drawn because of a noise complaint. (Doc. 1, ¶¶ 10-14). Plaintiffs, without

providing any supporting facts, allege that the noise complaint was fabricated and used as a

cover by Police Defendants for a direct order from Mayor Mehlbaum that they enter Plaintiffs

home. (Doc. 1, ¶¶ 10-14). According to Plaintiffs Mayor Mehlbaum wanted Police

Defendants to enter Plaintiffs’ home due to a “disagreement” she was having with them.

(Doc. 1, ¶¶ 12-14). Neither the disagreement nor whether Police Defendants knew of the

disagreement is further explained in the complaint. (Doc. 1).

Without more, these allegations are insufficient to establish a Fourth Amendment

violation. The presumption of truth that attaches to the pleadings at the motion to dismiss

stage only attaches to the allegations “for which there is sufficient factual matter to render

them plausible on their face.” Schuchardt, 839 F.3d at 347. Here, there are insufficient facts to

support Plaintiffs’ bold assertions. Plaintiffs continuously refer to Police Defendants’ entry

into their home as unlawful, however, do not detail the circumstances of the entry aside from

claiming it was based on a phony noise complaint. 2 (Doc. 1, ¶¶ 10-14). Plaintiffs fail to allege

2 The Court understands Plaintiffs allege that there was never a real noise complaint

and Police Defendants acted simply under the order of Mayor Mehlbaum. However, the

existence of a noise complaint would support that Police Defendants had probable cause to

question Plaintiffs, an argument that forms a large basis of Defendants’ reply brief. (Doc. 1,

¶¶ 10-14; Doc. 13, at 11-12); see Dessources v. Manning, No. CV1809324SDWESK, 2021 WL

3879094 (D.N.J. Aug. 31, 2021) (citing a noise complaint as a basis for probable cause for an

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the absence of a warrant, the absence of consent, or the details of the events that led to Police

Defendants drawing their guns. (Doc. 1, ¶ 11). Furthermore, the complaint fails to describe

any unlawful search or seizure of property, or state with specificity the Fourth Amendment

claim alleged against Police Defendants. (Doc. 1). Overall, the complaint provides minimal

factual basis on which this Court can conclude Plaintiffs’ claims are “plausible on their face.”

Schuchardt, 839 F.3d at 347. Without factual allegations suggesting so, this Court cannot

conclude that Police Defendants acted unreasonably. See Thomas v. Cuzzupe, No.

18CV12176NLHJS, 2018 WL 6322619, at *2 (D.N.J. Dec. 4, 2018) (dismissing a Fourth

Amendment claim where plaintiff failed to allege factual allegations supporting officers’

actions were unreasonable). Accordingly, Plaintiffs’ Fourth Amendment claim against Police

Defendants must be DISMISSED without prejudice with the expectation that Plaintiffs will

file a more detailed complaint that clearly describes the events which have led to their filing

of this lawsuit. (Doc. 1, at 6-7).

To the extent that Plaintiffs attempt to assert supervisory liability claim against Mayor

Mehlbaum. Defendants argue:

Plaintiffs have failed to show that a policy or custom of the Borough of

Girardville (as promulgated by Mayor Mehlbaum) caused any harm to

Plaintiffs. Indeed, Plaintiffs assert only the blank conclusion of law that Mayor

Mehlbaum was a policymaker. There is no indication as to whether Mayor

Mehlbaum had final authority to promulgate policy, nor what, if any, policies

existed or what, if any, causal nexus arose with Plaintiffs’ claimed injuries,

necessary to support an official capacity claim.

alleged Fourth Amendment violation). Because probable cause is better analyzed after fact

discovery, this Court will not further opine on this issue.

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(Doc. 8, at 14).

Plaintiffs respond that “Defendants were acting out of the direction, training and supervision

of Mayor Mehlbaum,” due to her “ill will” towards Plaintiffs. (Doc. 12, at 7).

Here, again, the complaint is deficient. The complaint contains no factual averments

supporting Plaintiffs’ assertion that the Police Defendants’ entry into Plaintiffs’ home was

effectuated by Mayor Mehlbaum, or that Mayor Mehlbaum maintains an unlawful policy or

custom that caused Plaintiffs’ harm. To the extent that Plaintiffs have sued Mayor Mehlbaum

in her official capacity, their claims are deemed to be against the municipality.3 Kentucky v.

Graham, 473 U.S. 159, 165 (1985). While municipalities and other local governments are

considered “persons” for purposes of Section 1983 liability, they cannot be held responsible

for every constitutional tort inflicted by their employees. Monell v. Dep't of Social Servs., 436

U.S. 658, 690 (1978); Connick v. Thompson, 563 U.S. 51, 60 (2011). Municipalities are

responsible only for “their own illegal acts” and are not subject to respondeat superior liability.

Connick, 563 U.S. at 62 (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986)). To bring

a Section 1983 claim against a municipality, or what is known as a Monell claim, the plaintiff

must show that “the alleged constitutional transgression implements or executes a policy,

3 In response to Defendants’ briefing, Plaintiffs do not dispute that their complaint fails

to establish Mayor Mehlbaum’s personal involvement. Thus, this Court correctly dismisses

Plaintiffs’ Fourth Amendment claim against Mayor Mehlbaum in her individual capacity. See

Jones v. Wetzel, No. CV 17-5121, 2018 WL 1322045, at *1 (E.D. Pa. Mar. 14, 2018) (finding

plaintiff must allege personal involvement to establish Section 1983 claims against

Defendants).

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regulation[,] or decision officially adopted by the governing body or informally adopted by

custom.” Mulholland v. Gov't Cty. of Berks, 706 F.3d 227, 237 (3d Cir. 2013) (citation omitted).

In other words, a plaintiff can establish Section 1983 municipal liability in two ways: policy

or custom. Watson v. Abington Township, 478 F.3d 144, 155 (3d Cir. 2007). The Third Circuit

has explained that to prove liability, the plaintiff must establish that the municipal policy or

custom was itself unconstitutional or was the “moving force” behind the constitutional

deprivation. Thomas v. Cumberland Cnty., 749 F.3d 217, 222 (3d Cir. 2014) (citation omitted).

Thus, to prevail on a Monell claim, a plaintiff must identify the challenged policy or custom,

demonstrate proper attribution to the public entity, and show a causal link between the

execution of the policy or custom and the injury suffered. Natale v. Camden Cnty. Corr. Facility,

318 F.3d 575, 583-84 (3d Cir. 2003). Here, Plaintiffs have failed to allege a policy or custom

maintained by Mayor Mehlbaum that infringed upon their rights. Thus, their Fourth

Amendment claim against Mayor Mehlbaum must be DISMISSED without prejudice.

(Doc. 1, at 6-7); see Wood v. Williams, 568 F. App'x 100 (3d Cir. 2014) (affirming the dismissal

of a Monell claim where plaintiff failed to plead an unlawful policy or custom). Again, this

Court anticipates the complaint will be amended to reflect the requirements of this claim.

B. DEFENDANTS’ QUALIFIED IMMUNITY CLAIM

The parties dispute whether Defendants are entitled to qualified immunity for the

claims brought against them. (Doc. 8, at 26; Doc. 12, at 9). Defendants argue that Plaintiffs

have failed to allege facts sufficient to overcome a finding of qualified immunity for Police

Defendants. (Doc. 8, at 27). The entirety of Plaintiffs’ qualified immunity argument is as

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follows: “[t]his was a clear violation of Plaintiffs clearly established constitutional rights and

therefore qualified immunity does not apply.” (Doc. 12, at 9).

Because this Court will extend Plaintiffs leave to amend their complaint to include

additional factual averments in support of their claims, including their claim that Police

Defendants violated a clearly established right, the Court will reserve discussion of qualified

immunity for later in this litigation. Thus, the Court will not further opine on Defendants’

qualified immunity claim at this juncture.

IV. LEAVE TO AMEND

The Third Circuit has instructed that if a complaint is vulnerable to dismissal for failure

to state a claim, the district court must permit a curative amendment, unless an amendment

would be inequitable or futile. Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (2002).

Further, “[a] district court has ‘substantial leeway in deciding whether to grant leave to

amend.’” In re Avandia Mktg., Sales Practices & Products Liab. Litig., 564 F. App'x 672, 673 (3d

Cir. 2014) (not precedential) (quoting Lake v. Arnold, 232 F.3d 360, 373 (3d Cir. 2000)). Here,

the Court will dismiss Plaintiffs’ Fourth Amendment claims without prejudice. Accordingly,

a curative amendment would be neither futile nor inequitable. Plaintiffs will thus be granted

leave to file an amended complaint to cure the deficiencies detailed in this Memorandum as

they relate to this claim.

V. CONCLUSION

For the foregoing reasons, Defendants’ motion to dismiss is GRANTED and

Plaintiffs’ complaint is to be DIMISSED. (Doc. 1; Doc. 7). Plaintiffs’ claims for punitive

damages and state law claims against Defendants are DISMISSED with prejudice. Plaintiffs’

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Fourth Amendment claims are DISMISSED without prejudice. To the extent that Plaintiffs’

claims have been dismissed without prejudice, Plaintiffs are granted leave to file an amended

complaint within 21 days from the date of this filing, on or before February 3, 2025.

An appropriate Order follows.

BY THE COURT:

s/Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge

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